by Timothy Sandefur
June 14, 2018
In a 7-2 decision this morning, the U.S. Supreme Court struck down a Minnesota law that forbids people from wearing “political” T-shirts, hats, or buttons when they go to the polling place on election day.
Unfortunately, the law doesn’t explain what exactly qualifies as “political,” meaning that polling place officials were basically free to ban speech however they wanted. Worse, as the Court pointed out in its opinion, the ban was so broad that it would even forbid people from wearing shirts with “ACLU” or “#MeToo” or even their Boy Scout uniforms—since all of those relate to recent political controversies. This lack of definition in the law, the Court said, “is a serious matter when the whole point of the exercise is to prohibit the expression of political views.”
That’s a welcome decision. As we argued in our friend of the court brief, the government really has no business banning speech unless the speech is going to cause violence or disruption of some sort. But the only disruption that occurred in the Minnesota case was caused by polling officials, when they tried to censor the kinds of T-shirts people could wear. Worse, Minnesota claimed that it had the right to censor speech that was aimed at “influencing” other people—even in the absence of disruption. That’s definitely wrong. The First Amendment was intended to protect the right to persuade and “influence,” so long as you’re not hurting anyone.
Unfortunately—and ironically—today’s decision is itself not exactly clear. The Court did not address the question of whether states can ban speech that’s only intended to “influence” people. In fact, the Court doesn’t really explain what states can and cannot do when it comes to banning political clothing at the polls. There must be “objective, workable standards,” Chief Justice Roberts wrote in the opinion. But he failed to give any objective, workable standards for states to follow when they pass these laws. “If a state wishes to set its polling places apart as areas free of partisan discord,” he wrote, “it must employ a more discernible approach.” What does “discernible” mean? He doesn’t say—meaning that we can almost certainly expect another round of lawsuits.
Timothy Sandefur is Vice President for Litigation at the Goldwater Institute.